COURT OF APPEAL FOR ONTARIO

DATE: 20001026

DOCKET: C27263

MORDEN, CATZMAN and AUSTIN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN ) Robert Kelly, for the respondent

(Respondent) )

) Robert Goddard, for Correctional

–and– ) Law Project, Queen’s University

JASON LAUZON ) Jason Lauzon, the appellant in person

(Appellant) )

) Heard: September 26, 2000

On appeal from the conviction dated December 14, 1996 and sentence imposed April 30, 1997, following trial before Justice Pierre Mercier and a jury.

BY THE COURT:

The appeal

[1] The appellant was convicted of second degree murder and sentenced to life imprisonment with parole ineligibility for 14 years. He appeals his conviction and the period of parole ineligibility. With the appellant’s consent, the submissions in support of his appeal were made by Robert Goddard of the Correctional Law Project of the Faculty of Law of Queen’s University. We are indebted to Mr. Goddard for his clear and helpful submissions, with which we deal below.

Sidney Alston’s statement to the police

[2] Sidney Alston had been at the deceased’s home around the time of the stabbing. Called as a witness at the trial, Alston testified that he had no recollection of the events of the night the deceased was killed. The trial judge admitted evidence of a statement given by Alston to the police a few days after the stabbing, in which Alston said (among other things) that Sean Comeau, with whom the appellant allegedly acted in killing the deceased and who died prior to the trial, had told Alston to leave because “they were going to give George a beating at this time”, that “they were going to smash George around ... he owes them some money” and that, when Alston left, “Sean was checking the bedroom and Buddy [meaning the appellant] was checking the washroom”.

[3] The trial judge admitted Alston’s statement on two bases: under the doctrine of past recollection recorded and under the principled approach to hearsay evidence. Having regard to the recent decision of the Supreme Court of Canada in R. v. Starr, (2000) S.C.C. 40, we find it necessary to address this issue only by reference to the latter ground of admission.

[4] The principled approached permits the reception of an out-of-court statement where the requirements of necessity and reliability are satisfied. The trial judge found that the necessity requirement was satisfied and, indeed, defence counsel at trial did not contest the point. With respect to the reliability requirement, we agree with the submissions of Mr. Kelly that, on the evidence adduced, Mr. Alston’s statement exhibited sufficient indicia of threshold reliability to afford the jury a satisfactory basis for evaluating its ultimate reliability. In reaching this conclusion, we have particular regard to the combination of the following factors:

• the statement was made three days after the events took place;

• there was no suggestion when the statement was made that Alston had a motive to implicate the appellant in the murder;

• there was no suggestion of collusion between Alston and any other witness;

• the statement was not given in response to leading or coercive questions, and there was no suggestion of any misconduct by the police in obtaining or recording the statement;

• the police did not provide Alston with information received from other witnesses;

• given the choice of writing or videotaping a statement, Alston indicated he

would write it, and wrote, without apparent difficulty, the first page of the statement himself in handwriting that was clearly legible;

• Alston did not repudiate his statement when he gave evidence at trial; indeed, while acknowledging his drug-induced state at the time the statement was given, he testified at trial that he believed he was being truthful when he spoke to the police and that he had no reason to lie; and

• the defence had the opportunity to conduct a realistic cross-examination of Alston about the statement.

Sidney Alston’s statement: the charge to the jury

[5] On three occasions during his charge to the jury, the trial judge specifically instructed them that they could not use anything in Sidney Alston’s statement as evidence against the appellant. On one other occasion, however, the trial judge said:

Sean is the one Alston said told him they would beat up Meunier. As I said, this is not evidence against Jason unless you are satisfied that the whole of the evidence does establish a common design. I do not know, but it will be for you to decide, that there is any evidence of a common design to rob or beat up Meunier, at least at any time before they arrived at Meunier’s residence. [Emphasis added.]

[6] On the subject of “common design”, the trial judge reminded the jury that the defence position was that:

Nothing in the evidence comes close to establishing a common design between Sean and Jason to injure or cause death to Meunier. Sean’s words, if you find they were uttered, about beating Meunier, [are] evidence against Sean only and not against Jason. That is the defence position, and I have told you that I agree with that. [Emphasis added.]

[7] We are prepared to assume, although Mr. Kelly argued to the contrary, that the trial judge was correct in his conclusion that there was no evidence of common design. On that assumption, it is our view that the single passage emphasized in para. 4 would not have had the effect of overtaking the clear and forceful limiting instructions given by the trial judge on a number of occasions, particularly having regard to his observation that he agreed with the position of the defence respecting the absence of evidence of common design. Accordingly, if Alston’s evidence respecting what Comeau said to him was inadmissible against the appellant, we are satisfied that the trial judge clearly instructed the jury that it could not be used against him.

Biological samples: the appellant’s refusal to provide samples

[8] In examination-in-chief of the police identification officer, Cst. Tario, Crown counsel asked no questions about any request of the appellant that he provide biological samples for forensic analysis. On cross-examination, defence counsel elicited from Cst. Tario the evidence that the appellant was quite co-operative and “complied with all [the officers’] demands”. In re-examination, Crown counsel brought out that the appellant had not acceded to all of the police’s demands and that he had, in fact, declined their request for biological samples. Crown counsel made it clear in his questions that every accused person is free to refuse such a request, and defence counsel elicited from another police officer that the appellant’s refusal to provide samples was prompted by the advice of his counsel.

[9] We do not consider inappropriate the very brief and confined questioning by Crown counsel that sought to demonstrate that there was a limit to the extent to which, in defence counsel’s words, the appellant “was cooperative [and] complied with all your demands”. In his charge, the trial judge expressly instructed the jury that there was no duty on anyone to give samples in response to a request and that it would be normal for a person to follow the instructions of his counsel. We see no error in the admission of this evidence or in the manner in which it was put to the jury.

Biological samples: rinsing the saliva from the coffee cup

[10] On the night after his arrest, after finishing his evening meal, the accused rinsed out his styrofoam coffee cup in a sink in his cell. He was later taken to see Cst. Tario and, when he returned to his cell, gratuitously said to Cst. Bernier, a uniformed police officer who was guarding the cells in the police station, “I’m not giving them what they want. That is why I washed the saliva off the cup”.

[11] The trial judge referred to both of these pieces of evidence when dealing with consciousness of guilt in his charge to the jury. As noted, he reminded the jury that no accused person is obliged to give samples and that it would be normal for a person to follow his counsel’s instructions. He told them that they might infer, not that they had to infer, consciousness of guilt from five separate pieces of evidence, of which these were together included as one. Of this piece of evidence, he said that the jury “should be very careful when considering this and whether you can infer anything from that”.

[12] In our view, the evidence of the appellant’s act of rinsing saliva from his coffee cup and of his gratuitous statement about “not giving them what they want” were properly admitted as after the fact conduct and were properly treated in the trial judge’s charge to the jury.

The charge on after the fact conduct

[13] As noted, the trial judge charged the jury on five pieces of evidence which he identified as possible indicators of consciousness of guilt (now usually described as “after the fact conduct”). He did not instruct the jury, as Mr. Goddard submitted he was obliged to do, that the evidence in question could not assist them in determining whether the appellant was guilty of murder rather than manslaughter..

[14] The Crown’s case was that the appellant was an active participant in the attack on Meunier and that he was guilty of murder either as a principal or as an aider. The position of trial counsel for the appellant, who did not testify and called no evidence, was that the appellant did not participate in any way in the assault on Meunier and that he was not involved in any culpable act. The evidence of after the fact conduct could properly be used by the jury in determining whether the appellant was a participant in the attack as opposed to being a mere bystander who did nothing. As such, the evidence of after the fact conduct was relevant to his liability for murder. There was no realistic risk that the jury would have relied on that conduct to find that he had the intent required for murder as opposed to the lesser intent required for manslaughter.

[15] We see no error in the absence from the trial judge’s charge of an instruction that the evidence of after the fact conduct could not assist in the determination of the appellant’s guilt of murder rather than manslaughter.

The application of the proviso

[16] For the reasons indicated above, we have found no error in the admission of evidence or in the charge to the jury. Even had we acceded to Mr. Goddard’s submissions, however, we would have concluded that no substantial wrong or miscarriage of justice occurred by reason of the errors for which he contended. The extensive evidence adduced by the Crown in support of its case is summarized in twenty subparagraphs of para. 48 of the respondent’s factum filed on this appeal. The appellant did not testify and called no evidence. In these circumstances, even assuming the errors suggested by Mr. Goddard, the evidence against the appellant was overwhelming and there is no reasonable possibility that the verdict would have been different had the alleged errors not been made.

The parole ineligibility period

[17] Mr. Goddard submitted that, particularly having regard to the trial judge’s conclusion that Comeau, not the appellant, was the principal actor in the offence, the trial judge should have accepted the jury’s recommendation that the parole ineligibility period be set at 10 years.

[18] In our view, the imposition of a 14-year period of parole ineligibility was neither wrong in principle nor outside the permissible range. The killing of Meunier over a drug debt was brutal and senseless. The appellant, who was on parole at the time of the offence, showed no remorse and no interest in rehabilitation. His prior criminal record was extensive and included six convictions for robbery. The finding that the appellant was not the “main character” did not mandate the imposition of the minimum period of ineligibility. The trial judge expressly considered the jury’s recommendation but noted, correctly, that when the members of the jury made it, they were unaware of the appellant’s criminal record. We see no basis on which appellate interference with the period of parole ineligibility would be warranted.

Disposition

[19] The appeal against conviction is dismissed. Leave to appeal against sentence is granted, but the appeal against sentence is dismissed.

Released: OCT 26 2000 Signed: “J.W. Morden J.A.”

JWM “M.A. Catzman J.A.”

“Austin J.A.”